Tafolla v. Heilig

21-2327-cv
Tafolla v. Heilig


                    United States Court of Appeals
                             for the Second Circuit
                      _____________________________________

                                  August Term 2022

               (Argued: January 10, 2023       Decided: August 18, 2023)

                                     No. 21-2327

                      _____________________________________

                                   KIM L. TAFOLLA,

                                                                    Plaintiff-Appellant,

                                       — v. —

                       EDWARD HEILIG, DIVISION CHIEF, JOSEPH
                          CARROLL, COUNTY OF SUFFOLK,

                                                         Defendants-Appellees.∗
                      _____________________________________

Before:        SULLIVAN, BIANCO, and PÉREZ, Circuit Judges.

       Plaintiff-appellant Kim Tafolla appeals from the judgment of the United
States District Court for the Eastern District of New York (Seybert, J.), granting
summary judgment in favor of defendants-appellees County of Suffolk, Suffolk
County District Attorney’s Office Division Chief Edward Heilig, and Suffolk
County District Attorney’s Office Special Investigations Bureau Chief Joseph


∗ The Clerk of the Court is respectfully instructed to amend the caption to conform with
the above.


                                           1
Carroll. Tafolla was a Clerk Typist in the District Attorney’s Office from 2008 until
her employment in the Special Investigations Bureau was terminated in 2015. She
alleged that defendants discriminated against her based on her disability and
retaliated against her for seeking an accommodation for that disability, in violation
of the Americans with Disabilities Act of 1990, 

, et seq., the New
York State Human Rights Law, 

, and 

.
Specifically, Tafolla asserted that defendants failed to reasonably accommodate
her request to not be assigned archiving tasks based upon the medical
documentation she provided to defendants regarding her physical limitations.
Tafolla further alleged that defendants retaliated against her for making the
accommodation request by forcing her to go on medical leave, which ultimately
led to her termination.

       On appeal, Tafolla argues that the district court erred in granting summary
judgment on her reasonable accommodation and retaliation claims. We agree.
Construing the evidence most favorably to Tafolla, a rational jury could find that
archiving was not an essential function of Tafolla’s position and that defendants
failed to provide a reasonable workplace accommodation for her disability. We
similarly conclude that disputed issues of material fact preclude summary
judgment on Tafolla’s retaliation claim. With respect to the Section 1983 claim
against the County of Suffolk, because Tafolla has not presented any arguments
on appeal challenging the district court’s decision, we deem that claim abandoned
and affirm.

       Accordingly, we AFFIRM the district court’s judgment as to Tafolla’s
Section 1983 claim and VACATE the district court’s judgment with respect to the
reasonable accommodation and retaliation claims. The case is REMANDED to
the district court for further proceedings consistent with this opinion.

      JUDGE SULLIVAN concurs in part and dissents in part in a separate opinion.

                                             STEPHEN BERGSTEIN, Bergstein &
                                             Ullrich, New Paltz, NY, for Plaintiff-
                                             Appellant.




                                         2
                                            HOPE SENZER GABOR, Assistant
                                            County Attorney, for Dennis M.
                                            Cohen, Suffolk County Attorney,
                                            Suffolk County Department of Law,
                                            Hauppauge, NY, for Defendants-
                                            Appellees.

JOSEPH F. BIANCO, Circuit Judge:

      Plaintiff-appellant Kim Tafolla appeals from the judgment of the United

States District Court for the Eastern District of New York (Seybert, J.), granting

summary judgment in favor of defendants-appellees County of Suffolk (the

“County”), Suffolk County District Attorney’s Office Division Chief Edward

Heilig, and Suffolk County District Attorney’s Office Special Investigations

Bureau (“SIB”) Chief Joseph Carroll (collectively, “defendants”). Tafolla was a

Clerk Typist in the District Attorney’s Office from 2008 until her employment in

the SIB was terminated in 2015. She alleged that defendants discriminated against

her based on her disability and retaliated against her for seeking an

accommodation for that disability, in violation of the Americans with Disabilities

Act of 1990 (“ADA”), 

, et seq., the New York State Human Rights

Law (“NYSHRL”), 

, and 

. Specifically, Tafolla

asserted that defendants failed to reasonably accommodate her request to not be

assigned archiving tasks based upon the medical documentation she provided to


                                        3
defendants regarding her physical limitations.        Tafolla further alleged that

defendants retaliated against her for making the accommodation request by

forcing her to go on medical leave, which ultimately led to her termination.

      On appeal, Tafolla argues that the district court erred in granting summary

judgment on her reasonable accommodation and retaliation claims. We agree.

Construing the evidence most favorably to Tafolla, a rational jury could find that

archiving was not an essential function of Tafolla’s position and that defendants

failed to provide a reasonable workplace accommodation for her disability. We

similarly conclude that disputed issues of material fact preclude summary

judgment on Tafolla’s retaliation claim. With respect to the Section 1983 claim

against the County, because Tafolla has not presented any arguments on appeal

challenging the district court’s decision, we deem that claim abandoned and

affirm.

      Accordingly, we AFFIRM the district court’s judgment as to Tafolla’s

Section 1983 claim and VACATE the district court’s judgment with respect to the

reasonable accommodation and retaliation claims. The case is REMANDED to

the district court for further proceedings consistent with this opinion.




                                         4
                                  BACKGROUND

    I.   Factual Background 1

         As a Clerk Typist, Tafolla performed “general office duties,” including

answering calls, typing various legal documents, and photocopying. Joint App’x

at 140. Her responsibilities also included a task called archiving, which typically

involved entering information from court files into a database after a prosecutor

closed a criminal case. Following a car accident, during which Tafolla suffered a

spine injury when her vehicle was rear-ended at a stoplight, she sent an email to

SIB Chief Joseph Carroll dated December 6, 2013 (“First Accommodation

Request”) explaining that her “neck, back and ribs are extremely sore” and

requesting that another employee temporarily take over her archiving

responsibilities. 

. Carroll responded by asking Tafolla to provide a

doctor’s note indicating any necessary restrictions.

         On December 10, 2013, Tafolla left a note from a physician assistant at her

spine surgeon’s office in Carroll’s inbox. The note instructed, on separate lines, “-

No lifting over 5 pounds, - No bending, pushing exercises” and that Tafolla would

be revaluated in two months. 

. Carroll did not acknowledge the note


1  The facts set forth below are drawn from the record on summary judgment. Any
relevant factual disputes are noted.
                                          5
until January 7, 2014, when he and an assistant district attorney asked Tafolla why

certain files had not been archived. Tafolla responded that the note established

that she was not physically able to do the archiving because of her injury. Carroll

then told Tafolla that the note only restricted her from lifting files heavier than five

pounds. 2 In particular, Tafolla testified:

       [Carroll] proceeded to say to me, oh, well, the doctor said that you
       couldn’t lift files weighing over five pounds, when he proceeded to
       walk over to the desk in front of me and pick up one of the lighter
       files, and he was, like, mocking me, laughing at me, I don’t think this
       file weighs five pounds, and he just kind of flung it back on the desk.

. Tafolla again explained to Carroll, “I think you’re missing the point. . .

. [M]y doctor’s note does not just say that I cannot lift items weighing over five

pounds. It says that I’m not supposed to be doing any bending or pushing

exercises, and that I would be re-evaluated in two months.” 

. According

to Tafolla, Carroll kept “carrying on, ranting,” and told her that she should “get a

box, put it on the floor and sit in [her] seat and get it done.” 

 at 190–91. When

Tafolla again explained that she was not able to perform the “mechanics” of

moving the documents from her desk to the floor, Carroll responded that, if Tafolla



2 Carroll confirmed at his deposition that he understood the note to only restrict Tafolla’s
lifting, bending, and twisting with respect to objects weighing five pounds or more and
that he conveyed to Tafolla that she should be able to handle files weighing less than five
pounds.
                                              6
was unable to complete the archiving, she would be transferred or put on

disability:

      [Carroll] told me that if I was not happy here, he would be happy to
      find me another place to go. Now, that’s when I said to him, I don’t
      know what me being happy in SIB has anything to do with the injury
      that I sustained from my car accident. I said, I am perfectly happy
      here, and he said that if I did not do the archiving and I could not do
      my job the way it was intended to be done, that he would call Ed
      Heilig, my division chief[, and my union representatives], and I will
      get them over here and we will discuss having you moved[. Y]ou’re
      going to get put out . . . I’m going to have you put out on disability, is
      what he said to me, and then I started to plead with him. Joe, I have
      a family. I have a rent payment, I have car payments, I have car
      insurance, I cannot afford to go out on disability. And he told me,
      well, then do your job.

. After the conversation with Carroll, Tafolla “did what he told [her]” and

completed some archiving, which caused her pain. 

.

       The next day, January 8, Tafolla called in sick and had an appointment with

her spine surgeon, Dr. Robert M. Galler, who provided her with a formal letter to

the County stating that Tafolla was “unable to lift, bend, twist, or push any object

over five pounds” and that she was “able to perform secretarial work but no

physical duties at this time.” 

. When Tafolla returned to work on January

9, there were files piled in front of her desk.




                                           7
      About a week later, on January 14, after seeking advice from a union

representative and attempting to avoid any additional archiving, Tafolla faxed an

accommodation request, along with Dr. Galler’s letter, to Human Resources

(“Second Accommodation Request”). Immediately after receiving the Second

Accommodation Request, Diane Stankewicz from Human Resources called

Tafolla and informed her “that the [C]ounty doesn’t offer light duty assignments,

and that it would be up to [Carroll] whether or not he wanted to accommodate.”

. Caroline Stolz from Risk Management repeated substantially the same

information to Tafolla later that day.

      On January 15, Tafolla worked a full day. In the afternoon, one of the

assistant district attorneys gave Tafolla documents to archive. By the end of the

day, Tafolla believed that her accommodation request had been rejected and that

she was not physically able to fulfill her full job responsibilities. When Tafolla left

the office, she “felt in [her] mind that [she] probably was not going to go back after

everything that [she] had been through.” 

.

      Division Chief Edward Heilig, in a memorandum dated January 16 (the

“Heilig Memorandum”), responded to the Second Accommodation Request. He

explained that Carroll had previously granted Tafolla’s First Accommodation



                                          8
Request “wherein [she] would not have to deal with any file weighing over five

pounds” and that she was “hereby advised . . . not to ‘lift, bend, twist or push any

object over five pounds’ and that if [she] believe[d] any file . . . weigh[ed] in excess

of five pounds[, she] was not to touch that file.” 

. He added “[t]hese

accommodations allow you to perform ‘secretarial work’ . . . consistent with the

conditions set by your doctor in his January 8, 2014 letter.” 

 Finally, Heilig

explained that “the [C]ounty does not have light duty assignments. If you are not

capable of performing your job duties for any reason, including medical

limitations, you will have to be out of work on medical leave until you can return

to work with a Doctor’s note indicating that you can work with no restrictions.”

 Tafolla interpreted this letter as denying her accommodation requests.

      Tafolla ultimately took disability leave. In 2015, the County terminated her

employment, pursuant to New York Civil Service Law § 73, due to her one-year

absence from her employment with the County.

II.   Procedural History

      On August 21, 2017, Tafolla filed a pro se complaint and, after retaining

counsel, filed an amended complaint on January 22, 2018, alleging claims for




                                           9
disability discrimination and retaliation under Section 1983, the ADA and

NYSHRL. 3 After discovery, defendants moved for summary judgment.

      On August 19, 2021, the district court granted defendants’ motion on all

claims. Tafolla v. County of Suffolk, No. 17-cv-4897, 

 (E.D.N.Y. Aug.

19, 2021). With respect to the disability discrimination claim under the ADA and

NYSHRL, the district court concluded that Tafolla “fail[ed] to make a showing

sufficient to establish [d]efendants did not offer her a reasonable accommodation,

an element essential to her claim for liability.” 

. In particular, after

reviewing the record, the district court found that “[d]efendants granted [Tafolla]

a plainly reasonable accommodation that was consistent with her doctors’ notes,”

that is, a five-pound limitation on any lifting bending, twisting or pushing. 

. Moreover, to the extent Tafolla claimed that her medical documentation

required relief from all archiving responsibilities, the district court found that

Tafolla was responsible for the breakdown in the interactive process. 

 at *7–*8.

As to the retaliation claim under the ADA and NYSHRL, the district court held

that “the undisputed record does not support the argument that [Tafolla] was



3 The ADA reasonable accommodation and retaliation claims were asserted against the
County while the NYSHRL claims were asserted against all defendants. In the district
court, Tafolla narrowed the Section 1983 claim to assert it only against the County for
municipal liability under Monell v. Dep’t of Soc. Servs., 

 (1978).
                                          10
forced to take medical leave,” and “because the proposed accommodation based

on [Tafolla’s] doctors’ notes was plainly reasonable here . . . the accommodation

does not constitute an adverse employment action.” Id. at *9. Finally, with respect

to the Section 1983 claim, the district court concluded that, even if the reasonable

accommodation claim survived summary judgment, Tafolla failed to adduce

evidence of an unlawful policy or practice that would support liability against the

County under Monell. Id. at *10.

       This appeal followed.

                                        DISCUSSION 4

       “We review a grant of summary judgment de novo.” Radwan v. Manuel, 

 (2d Cir. 2022). Summary judgment is appropriate “only upon a

showing ‘that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” Johnson v. Killian, 

 (2d

Cir. 2012) (per curiam) (quoting Fed. R. Civ. P. 56(a)). When deciding a motion for

summary judgment, we must “‘resolve all ambiguities and draw all permissible




4 Because Tafolla has not presented any arguments on appeal regarding her Section 1983
claim, she has abandoned it, and we affirm the district court’s grant of summary
judgment on that claim. See LoSacco v. City of Middletown, 

, 92–93 (2d Cir. 1995).
                                            11
factual inferences in favor of the party against whom summary judgment is

sought.’” 

 (quoting Terry v. Ashcroft, 

 (2d Cir. 2003)).

 I.   Reasonable Accommodation Claim

      The ADA and the NYSHRL require an employer to provide a reasonable

accommodation for an employee’s disability unless the accommodation would

impose an undue hardship on the employer. 

(b)(5)(A); N.Y. Exec.

L. 296(3)(a)–(b). We evaluate such claims under the ADA and NYSHRL using the

familiar McDonnell Douglas burden-shifting framework. See Bey v. City of New

York, 

, 165 (2d Cir. 2021) (citing McDonnell Douglas Corp. v. Green, 

 (1973)); Williams v. MTA Bus Co., 

 (2d Cir. 2022) (applying

McDonnell Douglas to NYSHRL claims). Under McDonnell Douglas, “the plaintiff

bears the initial burden of establishing a prima facie case.” Bey, 999 F.3d at 165; see

also McMillan v. City of New York, 

 (2d Cir. 2013) (“In

discrimination claims based both on adverse employment actions and on failures

to accommodate, the plaintiff bears the burdens of both production and

persuasion as to the existence of some accommodation that would allow [her] to

perform the essential functions of [her] employment.” (internal quotation marks

and citations omitted)). If the plaintiff meets her initial burden, then the burden



                                          12
shifts to the defendant. Bey, 999 F.3d at 165. However, because defendants here

only contest Tafolla’s claims on the grounds that she has failed to set forth a

sufficient prima facie case, we have no need to examine whether Tafolla’s proposed

accommodation “would present undue hardships [for the defendants] and would

therefore be unreasonable.” Id. (internal quotation marks and citation omitted).

      To make out a prima facie disability discrimination case based upon a failure

to accommodate, a plaintiff must establish that: “(1) plaintiff is a person with a

disability under the meaning of the ADA; (2) an employer covered by the statute

had notice of his disability; (3) with reasonable accommodation, plaintiff could

perform the essential functions of the job at issue; and (4) the employer has refused

to make such accommodations.” McBride v. BIC Consumer Prod. Mfg. Co., 

 (2d Cir. 2009) (internal quotation marks, alteration, and citation omitted); see

also Graves v. Finch Pruyn & Co., 

, 184 n.3 (2d Cir. 2006) (“A claim of

disability discrimination under the [NYSHRL] . . . is governed by the same legal

standards as govern federal ADA claims.”).

      Defendants contest only the third and fourth elements of Tafolla’s prima facie

case for discrimination. As set forth below, evaluating the record in the light most

favorable to Tafolla, we conclude that the district court erred in granting summary



                                          13
judgment to defendants on the reasonable accommodation claim under the ADA

and the NYSHRL.

         A. Essential Function

      Defendants argue that summary judgment was warranted on the reasonable

accommodation claims because archiving was an essential function of Tafolla’s

job. The district court did not reach this issue. Nevertheless, we have considered

it and conclude that there are disputed facts in the record that preclude summary

judgment on this element.

      To determine a position’s “essential functions” this Court “conduct[s] a fact-

specific inquiry into both the employer’s description of a job and how the job is

actually performed in practice,” in which we “draw[] all inferences in favor of the

non-moving party.” McMillan, 

 (internal quotation marks omitted);

see also 

 (listing factors including “the employer’s judgment, written job

descriptions, the amount of time spent on the job performing the function, the

mention of the function in a collective bargaining agreement, the work experience

of past employees in the position, and the work experience of current employees

in similar positions”). “The term ‘essential functions,’ which is not defined in the

statutes themselves, is generally defined in ADA regulations promulgated by the



                                        14
Equal Employment Opportunity Commission (‘EEOC’) to mean the ‘fundamental’

duties to be performed in the position in question, but not functions that are

merely ‘marginal.’” Stone v. City of Mount Vernon, 

 (2d Cir. 1997)

(quoting 

(n)(1)).     Under this standard, “a court must give

considerable deference to an employer’s judgment regarding what functions are

essential for service in a particular position,” with an understanding that “[a]

reasonable accommodation can never involve the elimination of an essential

function of a job.” Shannon v. N.Y.C. Transit Auth., 

, 100 (2d Cir. 2003)

(alteration adopted) (internal quotation marks and citations omitted). Ultimately,

however, “the question whether a task constitutes an essential function depends

on the totality of the circumstances.” Rodal v. Anesthesia Grp. of Onondaga, P.C., 

 (2d Cir. 2004).

      Here, in deposition testimony, SIB Chief Carroll stated, “I don’t know if I

would deem [archiving] essential. It’s rather minimal.” Joint App’x at 591. Tafolla

also asserts that the work was so unimportant that Carroll had to ask Tafolla in

December 2013 to prepare a list of recently archived files because, as Carroll

himself explained, he “wanted to have some understanding of how much work

the archives entailed.” Id. at 486. Another assistant district attorney described



                                         15
archiving as “the last thing [for the administrative assistants] to get done because

we have a lot of other pressing work to get done.” Id. at 707. There were also no

deadlines for archiving any particular file, and Division Chief Heilig

acknowledged that backlog was not cause for concern. In addition, although

Tafolla’s job description does provide that a Clerk Typist “sorts, indexes and files

documents,” Tafolla notes that it does not mention the archiving process

specifically and details predominantly sedentary tasks, including transcribing,

typing, receiving and verifying documents, answering telephones, proofreading,

operating simple office equipment, and acting as a receptionist.                    Id. at 990.

Moreover, Carroll testified that the administrative assistants were permitted to

divide up the various tasks among themselves. See id. at 434 (testifying that Tafolla

and the other administrative assistant split up the various tasks among

themselves); id. at 437 (“I don’t know how [the administrative assistants] split it

up. I just was concerned that the work was getting done.”).

       Construing this evidence most favorably to Tafolla, it is sufficient to raise a

genuine issue of disputed fact as to whether archiving was an essential function of

Tafolla’s position. See Stone, 

 (“A function is, by definition, not

‘essential’ to a position if that function is ‘marginal’ . . . .”); see also Miller v. Ill. Dep’t



                                               16
of Transp., 

 (7th Cir. 2011) (holding that summary judgment was

unwarranted on the “essential function” issue where “it was a regular occurrence

for individuals on [a particular] team to share and swap tasks according to their

individual capacities, abilities, and limitations”).        Accordingly, defendants’

argument for summary judgment based on this element is unpersuasive.

          B. Accommodation Requests

      As to the fourth prima facie element, defendants argue that the district court

correctly determined that summary judgment was appropriate because they

granted both the First and Second Accommodation Requests, and, in any event,

Tafolla was responsible for any breakdown of the interactive process. We address

these arguments in turn.

      We have emphasized that questions related to “‘[t]he reasonableness of an

[] accommodation . . . often must be resolved by a factfinder.’” Brooklyn Ctr. for

Psychotherapy, Inc. v. Phila. Indem. Ins., 

 (2d Cir. 2020) (quoting Noll

v. Int’l Bus. Machs. Corp., 

 (2d Cir. 2015)). In many cases, the two

sides dispute whether a particular accommodation is adequate to accommodate

the plaintiff. See, e.g., Noll, 

 (affirming grant of summary judgment

where employer provided sign language interpreters capable of translating files



                                           17
rather than captioning or providing transcripts of all files stored on employer

intranet). However, this case presents a different issue. Defendants’ position is

that the County fully granted Tafolla’s two accommodation requests by not

requiring her to archive files that were five pounds or more, and, thus, their

response was plainly reasonable.

      Consistent with defendants’ position, the district court held that “[t]he

undisputed    record    shows    [d]efendants    granted    [Tafolla]   the   precise

accommodation prescribed by her doctors.” Tafolla, 

, at *6. The

dissent adopts the same position. See post, at 3 (“Consistent with notes from

Tafolla’s doctors indicating that she should not lift any object over five pounds,

Carroll agreed to limit Tafolla’s archiving work to handling files of less than five

pounds and to arrange for other employees to lift any heavier files or boxes for

her.”); 

 (“Tafolla’s doctor’s note did not state that she was unable to do any

work related to archiving closed case files; it simply advised that she was ‘unable

to lift, bend, twist, or push any object over five pounds.’” (quoting Joint App’x at

983)). We disagree and conclude, drawing all inferences in Tafolla’s favor, that

there are genuine disputed issues of material fact that preclude summary




                                         18
judgment on the issue of whether defendants provided the accommodation that

Tafolla requested based upon her doctors’ instructions.

      As Tafolla argues, the physician assistant’s note could be reasonably viewed

as stating two separate restrictions: (1) that she could not “lift” anything over five

pounds, and (2) that she could not perform any “bending” or “pushing”

movements. Joint App’x at 980. In particular, the fact that the note lists the

restrictions on two separate lines, each with its own bullet point, could support

that interpretation.

      Although Carroll did accept the five-pound lifting restriction, he did not

consider the bending or pushing restriction when he told Tafolla to archive files

weighing less than five pounds. Carroll’s deposition testimony confirms that he

did not view the five-pound restriction as distinct from the bending restriction.

See 

 (explaining that the note “indicates lifting, bending and twisting,

however, it revolved all around the weight of the object being five pounds or more”

(emphasis added)); see also 

 (stating that the note provided that “five

pounds is the limitation”). Thus, based on the language of the note from her

doctor’s office, a rational jury could find that the defendants did not fully grant

Tafolla’s First Accommodation Request.



                                         19
      We also conclude that a rational jury could find that the defendants did not

fully grant Tafolla’s Second Accommodation Request. Dr. Galler’s letter, which

formed the basis of the Second Accommodation Request, can again be reasonably

read to provide that Tafolla should not be required to archive any files regardless

of weight. Dr. Galler’s letter instructed that Tafolla was unable to “lift, bend, twist,

or push any object over five pounds.” 

. To the extent that formulation

was somewhat less clear than the prior medical note because the bending and

twisting restrictions were not articulated on separate lines, Dr. Galler crucially

added that Tafolla was “able to perform secretarial work but no physical duties,”

which could be reasonably interpreted to mean that he intended to fully limit

Tafolla from archiving because it would involve bending or twisting regardless of

the weight of the file. 

 (emphasis added). Heilig, however, appears to have

read Dr. Galler’s letter to restrict Tafolla’s activities only with respect to objects

weighing more than five pounds. By stating, in the Heilig Memorandum, that

Tafolla was “not to ‘lift, bend, twist or push any object over five pounds’ and if

[she] believe[d] any file . . . weighs in excess of five pounds[, she was] not to touch

that file,” Heilig (like Carroll) was indicating that Tafolla was responsible for

archiving files less than five pounds. 

. In deposition testimony, Heilig



                                          20
also confirmed that he understood Dr. Galler’s letter to restrict physical duties

“[o]ver and above the five pounds.” 

; see also 

 at 904–05 (noting

disagreement with contention that Dr. Galler’s note restricted any bending or

twisting).   Tafolla also contends that the Heilig Memorandum could not be

reasonably interpreted as granting her full accommodation requests because it

further noted that the County did not provide “light duty assignments” and that

employees must work “with no restrictions.” 5 

.

      In short, given the language of the two medical documents Tafolla

submitted to the County, a jury could reasonably conclude that the instructions

from her doctor did not permit Tafolla to perform any archiving that involved

bending or twisting (even if the file was under five pounds) and that defendants

refused to grant a reasonable accommodation consistent with this instruction. 6


5 At his deposition, Heilig was asked about the EEOC’s reference to this language in its
determination that there was “reasonable cause” to believe that the County discriminated
against Tafolla on the basis of her disability. Joint App’x at 959–60. Heilig responded
that he believed the EEOC’s determination was “in error” but provided no explanation
as to how that language should have been interpreted by Tafolla. 

.

6  We also note that, to the extent that Carroll suggested in passing on January 7 that
Tafolla could be transferred to another unidentified position, there is no evidence that
defendants ever formally proposed (or even discussed further) the possibility of a
transfer with Tafolla, and the Heilig Memorandum did not mention the transfer as an
option. Thus, defendants never argued in the district court (nor do they argue on appeal)
that summary judgment was warranted because Carroll’s reference to a transfer
constituted a reasonable accommodation that Tafolla rejected. In any event, whether any
                                           21
      Finally, we also disagree with the district court’s determination that the

uncontroverted evidence established that Tafolla unilaterally “abandoned” the

interactive process and that “if [Tafolla] did not understand the terms of the

accommodation, then she had an obligation to seek clarification.” Tafolla, 

, at *8 (citing Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 

, 946

(2d Cir. 2008) (summary order)). We have explained that “the ADA envisions an

‘interactive process’ by which employers and employees work together to assess

whether an employee’s disability can be reasonably accommodated.” McBride, 

 (alteration adopted) (citations omitted)). Thus, once the interactive

process has been initiated by the employee’s request for an accommodation, the

regulations contemplate that the employer will “us[e] a problem solving

approach.” 29 C.F.R. Pt. 1630, App. § 1630.9. To be sure, an employee seeking an

accommodation is required to participate in this interactive process in order to

help the employer identify the “precise limitations resulting from the disability




purported transfer could constitute a reasonable accommodation, where Tafolla was not
interested in a reassignment, could not be decided at the summary judgment stage in this
case. See, e.g., Wirtes v. City of Newport News, 

 (4th Cir. 2021) (“Every
circuit court to have addressed this issue has concluded that an employer fails to
accommodate its qualified disabled employee when it transfers that employee from a
position they could perform if provided with reasonable accommodations to a position
they do not want.” (collecting cases)).
                                           22
and potential reasonable accommodations that could overcome those limitations.”

(o)(3). Thus, we have recognized that, where a “breakdown in

interactive process [was] manifestly [the employee’s] fault,” a failure-to-

accommodate claim “might be deemed frivolous.” Parker v. Sony Pictures Ent., Inc.,

 (2d Cir. 2001).

      Here, again construing the evidence most favorably for Tafolla, we conclude

the district court erred in resolving this fact-intensive question on summary

judgment. As noted above, Tafolla submitted the First Accommodation Request

on December 6, 2013, which she supplemented with the physician assistant’s note

on December 10. She did not receive a direct response until Carroll raised the

archiving with her on January 7, 2014. When Carroll expressed his understanding

that Tafolla was only restricted from handling files heavier than five pounds,

Tafolla responded that the note established that she was not physically able to do

the archiving. Carroll’s response that she should “get a box, put it on the floor and

sit in [her] seat and get it done” could be reasonably construed by Tafolla as ending

the interactive process, which was further reinforced when Tafolla found new files

on her desk the next day. Joint App’x at 191.




                                         23
      Even assuming arguendo that Carroll’s statements and conduct could not be

found by a rational jury to constitute the defendants’ termination of the interactive

process, the uncontroverted evidence is that Tafolla continued to engage with the

County by filing her Second Accommodation Request on January 14. Although

defendants purported to grant the Second Accommodation Request, as noted

supra, a reasonable jury could find otherwise. Human Resources’ immediate

verbal response to Tafolla that the County does not offer light duty assignments,

the same language repeated in the Heilig Memorandum, and an assistant district

attorney giving Tafolla new files to archive on January 15 could be reasonably

construed both as a rejection of the Second Accommodation Request and the

defendants’ termination of the interactive process.

      Moreover, at no time did the defendants suggest to Tafolla that she needed

to submit additional medical documentation to support her accommodation

requests, nor did the defendants seek clarification from Tafolla or her doctor 7

regarding the nature of the accommodation she requested. See McBride, 

 (“It is certainly true that an employer, by failing to engage in a sufficient

interactive process, risks not discovering a means by which an employee’s


7 Dr. Galler’s letter explicitly stated: “If there are any additional questions concerning
[Tafolla] please contact my office.” Joint App’x at 983.
                                           24
disability could have been accommodated and thereby increases the chance that it

will be found to have violated the ADA.”); see also Hohider v. United Parcel Serv.,

Inc., 

 (3d Cir. 2009) (“Engaging in a good-faith interactive process

may not only lead to identifying a specific accommodation that will allow a

disabled employee to continue to function as a dignified and valued employee, it

may also help sensitize the employer to the needs and worth of the disabled

person, and disabuse the employer of any misperceptions it may have of the

employee’s condition and qualification for employment.” (internal quotation

marks and citation omitted)); Bultemeyer v. Fort Wayne Cmty. Sch., 

 (7th Cir. 1996) (relying in part on the observation that “[i]f the [plaintiff’s

doctor’s] note was too ambiguous and [the employer] did not know what [the

plaintiff] wanted, [the employer] easily could have called [the doctor] for a

clarification” in determining that the plaintiff presented genuine issues of material

fact showing that the employer was responsible for the breakdown of the

interactive process); Miller v. Kendall, No. 14-cv-393, 

, at *2

(W.D.N.Y. Aug. 25, 2016) (concluding ambiguous doctor’s note precluded

summary judgment for defendant).




                                         25
      Defendants argue that a rational jury could not find that they terminated the

interactive process with the Heilig Memorandum on January 16 because Tafolla

testified at her deposition that, after leaving work on January 15, she already

intended to go on medical leave rather than return to work. Thus, defendants

contend (as the district court found) that her deposition testimony establishes that

she was incontrovertibly at fault for terminating the interactive process even

before receiving the Heilig Memorandum.            The dissent agrees with that

assessment. See post, at 3–4 (noting that, a day after submitting her written request

for an accommodation, “Tafolla left with ‘no intention of going back to work’” and

“[a]s a matter of law, Tafolla’s responsibility for the breakdown of the interactive

process is fatal to her failure-to-accommodate claims under both the ADA and

NYSHRL” (internal citation omitted)).

      As an initial matter, it is difficult to discern how Tafolla’s uncommunicated

intent to go on medical leave starting on January 16 could have been construed by

the defendants as her termination of the interactive process, in advance of the

Heilig Memorandum.        Indeed, contrary to that undisclosed intent, Tafolla

continued to convey to Carroll that she would return to work. On January 16 and

17, Tafolla texted Carroll indicating that she would be out of work those days



                                         26
because she was in pain. On January 21, she told Carroll that she would be out of

work “the remainder of the week.” Joint App’x at 217. Then on January 27, she

informed Carroll that she was going to be out “a while longer.” 

      In any event, any contention that her failure to return to work after January

15 constituted an abandonment of the interactive process must take into account

what had transpired prior to Tafolla reaching any such decision. See, e.g., E.E.O.C.

v. Sears, Roebuck & Co., 

 (7th Cir. 2005) (“The last act in the

interactive process is not always the cause of a breakdown . . . and courts must

examine the process as a whole to determine whether the evidence requires a

finding that one party’s bad faith caused the breakdown.”). In particular, Tafolla

testified that after she faxed the Second Accommodation Request to Human

Resources on January 14, she received a telephone call from Diane Stankewicz of

Human Resources during which Tafolla told her what had transpired with Carroll

on January 7, including that Carroll had not granted the accommodation request.

According to Tafolla, Stankewicz told her that, “if [Carroll] wasn’t going to allow

[Tafolla] to stay there [in SIB], then [Tafolla] would have to go out on medical

leave, on disability.” Joint App’x at 212–13. Tafolla then called Caroline Stolz in

Risk Management (who handled long-term disability) and Stolz agreed with



                                        27
Stankewicz that “if [Carroll] didn’t want to give [Tafolla] the accommodation, then

[Tafolla] would have to go out on disability.” Id. at 213. Thus, Tafolla explained

that, when she left work on January 15, she had the following understanding:

       [Carroll] had no intention of honoring my reasonable
       accommodation, and he had no intention of having [the other
       administrative assistant] file the archives, and there was no way I was
       going to be able to physically do them, and after speaking to Caroline
       [Stolz] and speaking to Diana Stankewicz and realizing that I had no
       other option, [Carroll] left me with no choice, I knew that I was going
       to have to go out on disability.

Id. at 218; see also id. at 220 (“When I left the office [on January 15], I felt in my mind

that I probably was not going back after everything I had been through, and the

fact that [Carroll] knew my situation, and he wasn’t willing to accommodate me,

yes, I pretty much know I wasn’t going back after I spoke to Caroline [Stolz] . . .

.”).

       Again construing the evidence most favorably to Tafolla, a rational jury

could find that these oral statements by various County representatives ended the

interactive process, and that the January 16 Heilig Memorandum merely

confirmed in writing what Tafolla already had been told orally before she left work

on January 15. See, e.g., Sears, Roebuck & Co., 

 (“It is not an

employee’s responsibility . . . to repeatedly prod a reticent employer. [Plaintiff]



                                            28
was given no indication that [the employer] . . . was willing to work with her to

determine a way to reasonably accommodate her disability. In this context, [the

employer] cannot avoid liability by contending that [plaintiff] should have tried

harder to force it out of its reluctant posture.”).

      We recognize that there are competing inferences that could be drawn from

the evidence and that a rational jury could indeed find that Tafolla was at fault for

the breakdown of the interactive process. However, these competing inferences

(along with any credibility assessments necessary to draw such inferences) cannot

be resolved by a court on summary judgment. See H.L. Hayden Co. v. Siemens Med.

Sys., Inc., 

, 1012 (2d Cir. 1989) (explaining that, although “reasonable

inferences can be drawn from the evidence in favor of the nonmoving party, . . .

the question of what weight should be assigned to competing permissible

inferences remains within the province of a factfinder at trial” (internal quotation

marks and citation omitted)); see also Talley v. Family Dollar Stores of Ohio, Inc., 

 (6th Cir. 2008) (reversing summary judgment after concluding that

“[t]he plaintiff has presented sufficient evidence from which a jury could find that

her failure to return to work and eventual discharge was a foreseeable and

intended result of the company’s action in refusing to allow her to use a stool [in



                                           29
performing her work as a cashier] and refusing to hold a meeting to resolve the

issue.”); Sears, Roebuck & Co., 

 (holding district court erred in

granting summary judgment to employer in finding plaintiff caused the

breakdown in the interactive process); Albert v. Smith’s Food & Drug Ctrs., Inc., 

 (10th Cir. 2004) (reversing summary judgment because of disputed

facts regarding “case specific determination” as to who was responsible for

breakdown in interactive process).

                                *             *           *

      In sum, a rational jury could find that: (1) archiving was not an essential

function of Tafolla’s position; and (2) defendants did not grant her the reasonable

requested accommodation that was supported by her medical documentation and

that they unilaterally ended the interactive process with the Heilig Memorandum.

Accordingly, summary judgment was unwarranted on the reasonable

accommodation claim under the ADA and NYSHRL.

II.   Retaliation Claim

      The burden-shifting framework under McDonnell Douglas also applies to

retaliation claims under both the ADA and the NYSHRL. See Treglia v. Town of

Manlius, 

 (2d Cir. 2002). The elements of a prima facie case of



                                         30
retaliation under both statutes are: “(i) a plaintiff was engaged in protected

activity; (ii) the alleged retaliator knew that plaintiff was involved in protected

activity; (iii) an adverse decision or course of action was taken against plaintiff;

and (iv) a causal connection exists between the protected activity and the adverse

action.” Natofsky v. City of New York, 

 (2d Cir. 2019) (analyzing an

ADA retaliation claim) (quoting Weixel v. Bd. of Educ. of City of New York, 

 (2d Cir. 2002)); Weissman v. Dawn Joy Fashions, Inc., 

 (2d

Cir. 2000) (applying same elements to a retaliation claim under NYSHRL).

      With respect to causation, a plaintiff must prove “that ‘but for’ the disability,

the adverse action would not have been taken.” Natofsky, 

. Proof

of causation can be established either “(1) indirectly, by showing that the protected

activity was followed closely by discriminatory treatment, or through other

circumstantial evidence . . . or (2) directly, through evidence of retaliatory animus

directed against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 

 (2d Cir. 2000).      “A plaintiff can indirectly establish a causal

connection to support a discrimination or retaliation claim by showing that the

protected activity was closely followed in time by the adverse employment




                                         31
action.” Gorzynski v. JetBlue Airways Corp., 

 (2d Cir. 2010) (alteration

adopted) (internal quotation marks omitted).

      The district court determined that “the undisputed record does not support

the argument that [Tafolla] was forced to take medical leave,” and thus,

defendants were entitled to summary judgment on the retaliation claim. Tafolla,

, at *9. We disagree.

      The alleged retaliatory conduct was in close temporal proximity to the

requests for an accommodation. Specifically, on January 7, 2014, Tafolla told

Carroll that she could not perform archiving based on her doctor’s instruction. She

testified that, in response, Carroll flung a file on her desk, and told her that he was

“going to have [her] put out on disability.” Joint App’x at 191. She described him

as “hostile” and recalled that “he was yelling.” 

. On January 16, 2014,

after Tafolla had faxed the Second Accommodation Request to Human Resources,

she received the Heilig Memorandum indicating, among other things, that the

“[C]ounty does not have light duty assignments” and that, if Tafolla was “not

capable of performing [her] job duties for any reason, including medical

limitations, [she] will have to be out of work on a medical leave until [she] can




                                          32
return to work with a Doctor’s note indicating that [she] can work with no

restrictions.” 

.

      The close temporal proximity between Tafolla’s requests for the

accommodation and the instruction that she would need to go on medical leave is

sufficient to support an inference of retaliation. See Gorman-Bakos v. Cornell Coop.

Extension of Schenectady Cnty., 

 (2d Cir. 2001) (holding that a period

of four months between the protected activity and the adverse action was

“sufficient to support an allegation of a causal connection strong enough to

survive a summary judgment motion”). In addition to the temporal proximity,

Tafolla relies on Carroll’s oral statements and the Heilig Memorandum to support

her argument that defendants retaliated against her by forcing her to go on

medical leave, ultimately leading to her termination. Moreover, although the

Heilig Memorandum stated that the “County does not have light duty

assignments,” the Director of Labor Relations for the County testified that “saying

there is no such thing as light duty . . . is incorrect.” Joint App’x at 1064. We

conclude that this evidence is sufficient to create disputed issues of material fact,

including on causation, that preclude summary judgment on the retaliation claim

under the ADA and NYSHRL.



                                          33
      In reaching this conclusion, we have considered defendants’ arguments but

find them unpersuasive. First, defendants contend that, “[s]ince [Tafolla] was

twice offered a reasonable accommodation, she was not disadvantaged in a

materially significant way.” Appellees’ Br. at 30. The dissent’s analysis hinges on

this same contention. See post, at 6 (determining that the accommodation offered

by the defendants “was entirely consistent with [the] medical advice” of her

doctor). However, in light of our determination that material factual disputes exist

with respect to the reasonableness of defendants’ response to Tafolla’s

accommodation requests, that argument similarly provides no basis for summary

judgment on the retaliation claim. We also find unavailing defendants’ assertion

that Tafolla’s retaliation claim fails for lack of causation because her employment

was terminated, pursuant to New York Civil Service Law § 73, about one year after

the events surrounding her disability requests. As the district court recognized, a

forced medical leave “could well dissuade a reasonable worker from making or

supporting a charge of discrimination” and could constitute an adverse action for

purposes of a retaliation claim. Hicks v. Baines, 

 (2d Cir. 2010)

(quoting Burlington N. & Santa Fe Ry. Co. v. White, 

 (2006)); see also

Arizanovska v. Wal-Mart Stores, Inc., 

 (7th Cir. 2012) (holding, in



                                         34
the context of a retaliation claim, that “[b]eing forced to take an unpaid leave of

absence” is an adverse employment action)).             Moreover, the subsequent

termination need not be evaluated in isolation where Tafolla asserts that it was the

culmination of defendants forcing her to be placed on medical leave shortly after

her accommodation requests. In other words, according to Tafolla, defendants

promptly retaliated against her with a forced medical leave but, due to civil service

laws, had to wait one year for that leave to result in termination. See, e.g., Grant v.

Bethlehem Steel, 

, 45–46 (2d Cir. 1980) (holding that plaintiff established

causal connection despite an eight-month lapse in time when the defendant was

unable to retaliate any sooner under the circumstances); see also Miller v. Erie Cnty.

Off. of Child. & Youth, 

, at *7 (W.D. Pa. July 10, 2018) (“Plaintiff

correctly notes that, while it is technically true he remained ‘employed’ until April

2017, he was actually retained on an unpaid medical leave of absence for the

majority of this time period, and was not permitted to return to his job because of

his inability to drive. This, in itself, may be regarded as an adverse action that

began well before Plaintiff was actually terminated. Thus, reasonable minds could

differ as to whether placing Plaintiff on unpaid medical leave was a materially

adverse action having a sufficient causal connection to Plaintiff’s request for a



                                          35
reasonable accommodation so as to satisfy the third prong of Plaintiff’s prima facie

case of retaliation.” (internal citations omitted)).

      In short, construing the evidence most favorably to Tafolla, a rational jury

could find that defendants retaliated against her for making the accommodation

requests by forcing her to go on a medical leave which ultimately led to her

termination. Accordingly, the district court erred in granting summary judgment

on the retaliation claims under the ADA and NYSHRL.

                              *            *           *

      For the foregoing reasons, we AFFIRM the district court’s judgment as to

Tafolla’s Section 1983 claim and VACATE the judgment with respect to the

reasonable accommodation and retaliation claims. The case is REMANDED to

the district court for further proceedings consistent with this opinion.




                                           36
RICHARD J. SULLIVAN, Circuit Judge, dissenting in part:

      I join the majority in affirming the district court’s grant of summary

judgment as to Tafolla’s claim under 

, which was clearly

abandoned. But I cannot agree with the majority’s decision to vacate the district

court’s grant of summary judgment as to Tafolla’s failure-to-accommodate and

retaliation claims asserted pursuant to the Americans with Disabilities Act of 1990

(the “ADA”), 

 et seq., and the New York State Human Rights Law

(the “NYSHRL”), 

 et seq. To my mind, the undisputed

evidence in the record establishes that Tafolla was responsible, as a matter of law,

for the breakdown of the interactive process. For that reason, I would affirm the

district court’s judgment in its entirety.

      I begin with Tafolla’s failure-to-accommodate claims. Under the ADA, an

employer must “mak[e] reasonable accommodations to the known physical . . .

limitations of an otherwise qualified individual with a disability who is an . . .

employee, unless . . . the accommodation would impose an undue hardship on the

operation of the business of such [employer].” 

(b)(5)(A). As the

majority recognizes, “the ADA envisions an ‘interactive process’ by which

employers and employees work together to assess whether an employee’s
disability can be reasonably accommodated.” Maj. Op. at 22 (quoting McBride v.

BIC Consumer Prod. Mfg. Co., 

 (2d Cir. 2009)).

      While the regulations implementing the ADA contemplate that “it may be

necessary for the [employer] to initiate” this “interactive process,” 

(o)(3) (emphasis added), they also clearly “envision an interactive process

that requires participation by both parties,” Beck v. Univ. of Wisc. Bd. of Regents, 

 (7th Cir. 1996); see 29 C.F.R. pt. 1630 app. (“The appropriate

reasonable accommodation is best determined through a flexible, interactive

process that involves both the employer and the [employee] . . . .” (emphasis added)).

As a result, we have explained that where a “breakdown in the interactive process

[was] manifestly [the employee’s] fault,” any failure-to-accommodate claim would

be “frivolous.” Parker v. Sony Pictures Ent., Inc., 

 (2d Cir. 2001); see

also, e.g., Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 

, 946 (2d Cir.

2008); Noel v. BNY-Mellon Corp., 

 (2d Cir. 2013); see also Romanello

v. Intesa Sanpaolo S.p.A., 

, 348–49 (1st Dep’t 2012) (holding same

under NYSHRL), aff’d as modified, 

 (2013).

      Applying this framework to the undisputed facts in the record, a reasonable

factfinder would have no choice but to conclude that defendants engaged with



                                           2
Tafolla in such an “interactive process” and that Tafolla was responsible for its

“breakdown.” Parker, 

. Following the November 2013 automobile

accident in which she sustained injuries to her neck, back, and ribs, Tafolla sent

Carroll an email asking to be relieved of her archiving duties, which entailed lifting

closed case files out of a box, logging their contents into a computer system, and

then placing the files into another box. Within two hours of receiving that email,

Carroll responded:

      I don’t want you to hurt yourself[;] why don’t we see what your
      doctor says Monday. If your doctor deems that you are unable to
      perform any work[-]related functions[,] please have him/her provide
      you with a letter indicating the nature of those restrictions.

J. App’x at 71. Consistent with notes from Tafolla’s doctors indicating that she

should not lift any object over five pounds, Carroll agreed to limit Tafolla’s

archiving work to handling files of less than five pounds and to arrange for other

employees to lift any heavier files or boxes for her. Carroll declined, however, to

relieve Tafolla of her archiving responsibilities altogether.      Unsatisfied with

Carroll’s proposed accommodation, Tafolla submitted a written request for

additional accommodations to the human resources department. Just a day after

submitting that request – and a day prior to receiving Heilig’s formal response to

it – Tafolla left with “no intention of going back to work.” 

 at 1198 ¶ 111.


                                          3
      In light of this record, I agree with the district court that “no reasonable jury

could find that [d]efendants, rather than [Tafolla] herself, terminated the

interactive process for discussing accommodations.” Sp. App’x at 22. As a matter

of law, Tafolla’s responsibility for the breakdown of the interactive process is fatal

to her failure-to-accommodate claims under both the ADA and NYSHRL. See

Parker, 

; Romanello, 949 N.Y.S.2d at 348–49. I would therefore affirm

the district court’s grant of summary judgment on those claims.

      Contrary to the majority’s contentions, no reasonable jury could conclude

that defendants terminated the interactive process on either January 7 or January

15, 2014. The undisputed facts show that Tafolla made a second accommodation

request approximately one week after her interaction with Carroll on January 7,

thereby undermining any claim that Tafolla reasonably believed the process was

at its end as of that date. I also fail to see how statements made by the County’s

human resources representatives on January 15 could reasonably be understood

to have terminated the interactive process. On their face, these statements made

clear that any decision as to Tafolla’s accommodation requests would be left to

Carroll – not the County representatives. And – although Tafolla discussed her

first accommodation request with Carroll on January 7 – she repeatedly confirmed



                                          4
during her deposition that she never discussed her second accommodation request

with him directly. As such, Tafolla’s mere intuition that – as of the time she left

the building on January 15 – Carroll was “[un]willing to accommodate [her]” and

there was “nothing [she] could really do,” J. App’x at 220, is insufficient to create

a jury-question on this issue.

         I also disagree with the majority that the evidence in the record is sufficient

to preclude dismissal of Tafolla’s ADA and NYSHRL retaliation claims.                   In

vacating the district court’s grant of summary judgment, the majority concludes

that there is sufficient evidence in the record “to support [Tafolla’s] argument that

defendants retaliated against her by forcing her to go on medical leave.” Maj. Op.

at 33.    In so concluding, the majority lends credence to Tafolla’s claim that

defendants “forced” her to take a leave of absence, id. at 35, by giving her an “all-

or-nothing option” – namely, to either “work without restrictions or take medical

leave,” Tafolla Br. at 30–31.

         But this reasoning “confuses the allegedly discriminatory action of failing to

accommodate         [Tafolla’s]   disability       with   retaliation   for   seeking   an

accommodation.” Wenc v. New London Bd. of Educ., No. 14-cv-840 (VAB), 

, at *17 (D. Conn. Aug. 16, 2016), aff’d, 

 (2d Cir. 2017). It



                                               5
also misconstrues the record before us. Indeed, Tafolla’s doctor’s note did not state

that she was unable to do any work related to archiving closed case files; it simply

advised that she was “unable to lift, bend, twist, or push any object over five

pounds.” J. App’x at 983. And the accommodation offered to her by defendants,

far from being an “all-or-nothing option,” contra Tafolla Br. at 30, was entirely

consistent with that medical advice:

      You are hereby advised that you are not to “lift, bend, twist[,] or push
      any object over five pounds[,]” and if you believe [that] any file you
      ha[ve] to “lift, bend, twist[,] or push” in connection with your job
      function weighs in excess of five pounds[,] you are not to touch that
      file[;] and after advising Mr. Carroll of same[,] other arrangements for
      dealing with that file will be made.

J. App’x at 81. Clearly, this offer to “allow [Tafolla] to perform secretarial work as

a clerk typist consistent with the conditions set by [her] doctor,” 

 (internal

quotation marks omitted), was not an “adverse [employment] action” within the

meaning of the ADA or NYSHRL, Natofsky v. City of New York, 

(2d Cir. 2019) (stating that a prima facie claim of retaliation under the ADA

requires that “an adverse decision or course of action was taken against plaintiff”);

see also Weissman v. Dawn Joy Fashions, Inc., 

 (2d Cir. 2000) (noting

that the NYSHRL contains “anti-retaliation provisions substantially similar to the

ADA’s provision”). I therefore see no basis for concluding that the district court


                                          6
erred in dismissing Tafolla’s ADA and NYSHRL retaliation claims.

      For these reasons, I respectfully dissent from the majority’s opinion and

would affirm the district court’s grant of summary judgment as to all claims.




                                        7